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Chapter 9

TRIAL PROCEDURES
PREPARATION FOR TRIAL
Assumptions which should be made ..................................................... 9/2
Analysis of case .................................................................................... 9/2
1. The facts ...................................................................................... 9/2
2. The documents ............................................................................ 9/2
3. Witnesses .................................................................................... 9/2
4. The law ........................................................................................ 9/2
5. Tactics, presentation and conduct of case ................................... 9/3
6. Further particulars for trial ............................................................ 9/3
7. Interrogatories .............................................................................. 9/3
8. Admissions ................................................................................... 9/3
Advice on evidence ............................................................................... 9/3
Preparation for cross examination ......................................................... 9/3
Classification of file ............................................................................... 9/3
Clerical aspects ..................................................................................... 9/4
Interviewing witnesses .......................................................................... 9/4
THE TRIAL
Advocacy .............................................................................................. 9/5
Rules of evidence .................................................................................. 9/5
The opening address ............................................................................ 9/5
Exclusion of witnesses .......................................................................... 9/6
Keeping of notes ................................................................................... 9/6
Objections ............................................................................................. 9/6
Order of presenting the case ................................................................. 9/6
Evidence-in-chief ................................................................................... 9/6
Cross-examination ................................................................................ 9/7
Methods of cross-examination .............................................................. 9/7
Credibility .............................................................................................. 9/8
Expert witnesses ................................................................................... 9/9
Re-examination ..................................................................................... 9/9
The argument ........................................................................................ 9/9
Dealing with difficult judges ................................................................. 9/10
Miscellaneous points to remember ...................................................... 9/10
Post trial .............................................................................................. 9/10

PREPARATION FOR TRIAL

The trial is the culmination of all the work up until that time and it is important that
careful preparation is made for the trial. In the past, many lawyers have not done their
preparation until shortly before set down. This has its risks as there may be inadequate
time to locate witnesses and put the case together. In the High Court, at least, this
approach will change because of the need to prepare properly for the pre-trial
conference.
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Assumptions which should be made

There are a number of assumptions which must be made when preparing for trial.
These are as follows.
1. Your opponent is no less capable than you although he may be a great deal more
experienced.
2. Each party believes it is right.
3. Someone is ready to take advantage of your mistakes.
4. Nothing in the witness’ statements, etc can be taken for granted.
If these assumptions are kept in mind, there is less chance of superficial preparation.

Analysis of case
In order to prepare for the pre-trial conference, it is necessary to analyse the case. The
easiest way is to base the preparation on the issues. In addition, useful information
may surface at the pre-trial conference and should be considered together with the
following.

1. The facts
Do the facts make sense and are they consistent? Is anything vital missing?

2. The documents
Do you have all the documents? At this point, both parties’ discovery should be
reviewed for possible omissions.

3. Witnesses
Do the witnesses support your client’s case? Consider which witnesses will be needed
and whether they should be subpoenaed.

4. The law
Is your understanding of the law supported by the case authorities? What authorities
are against you? How will you deal with these?
When researching the law, it is important to test the authorities to ensure that they are
correctly decided. The following points should be considered in the analysis of
reported cases.
4.1.What were the facts in the case?
4.2.Why did the court arrive at its decision?
4.3.Was the reasoning of the court correct?
4.4.Are the authorities on which the decision was based correct?
4.5.Has the judgment been subsequently criticised or over-ruled?
It is preferable to use text books as sources of authorities rather than as the authorities
for propositions.
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5. Tactics, presentation and conduct of case

How will you present your case? How will the other side present its case?

6. Further particulars for trial

With all the pleadings and discovery before you, you should be able to request
searching particulars for trial. The questions to be asked must be considered in detail.

7. Interrogatories
Is there any scope for interrogatories in the matter? If so what questions are to be
asked?

8. Admissions
Should you seek or make any admissions? Bear in mind a failure to make proper
admissions may prejudice your case and the judicial officer’s attitude to it. In terms of
rule 186 any party give notice to the other not less than 10 days before the trial calling
upon him to make admissions or to admit that a document is properly executed or is
what it purports to be. If the other party does not reply within 10 days he is deemed to
have made the admissions.

Advice on evidence
If you have briefed counsel, brief him to advise on evidence. If you do not have
counsel it is a good idea to prepare your own advice on evidence to ensure that you do
not overlook any important matters.

Preparation for cross-examination

The best way of preparing for cross-examination is to know one’s own case
backwards. Consider also the weak areas of the other party’s case and plan the
questions to be asked. Be careful of asking questions to which you do not know the
answer.

Classification of file
Classify the file in the manner you find most useful. Flagging important documents
may be helpful. The following example may be used as a guide for classification.
1. working notes
2. argument
3. pleadings
4. witness statements
5. correspondence filed chronologically
6. discovery of both parties
7. documents to be used
8. evidence
9. notices
10. previous proceedings
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Clerical aspects
There are a number of clerical matters which must be attended to before the hearing.
They should be checked while preparing for trial.
1. All pleadings must be numbered and preferably indexed. Applications must be
indexed.
2. Copies of relevant documents should be obtained from the other side if they have
not already been provided.
3. Ensure that both parties have complied with all notices either way.
4. Ensure that all subpoenas are issued and served.
5. Arrange for the interpreter if necessary. It is important to give the chief interpreter
adequate notice and to pay the necessary fees.
6. Ensure that there are sufficient copies of exhibits for both counsel, the bench and
the witness.
7. Arrange consultations with witnesses (with counsel, if necessary) and for them to
be available for the trial.

Interviewing witnesses
There are a number of important points to remember regarding witnesses.
1. Independent or expert witnesses are only trying to help and do their best. It is
essential that you do not alienate them because if you do you will bring the court
system into disrepute. Furthermore, you may find that when you need the help of
such witnesses in the future they will refuse to come to trial because of humiliating
prior experiences.
2. Most witnesses are reluctant or frightened. Many witnesses are not articulate and
even those that are may be intimidated by the court atmosphere. Treat them
accordingly.
3. Try and make it as convenient as possible for witnesses, both when taking
statements and at the trial stage. Where feasible, do not insist on them being at
court for the whole time of the trial. It is usually possible to estimate when they
will be needed and to arrange for them to come to court at that time.
4. When taking a statement, take time to find out exactly what the witness has to say.
Do not have preconceptions. It may be necessary to be a “devil’s advocate” and
this is likely to be resented by a witness. You should, therefore, explain why you
are adopting this strategy.
5. Record the witness’ statement carefully and, if possible, ask the witness to check
the written statement to ensure that you have understood him correctly. Once any
statement has been approved, keep it in a witness statement sub-file. Remember
that statements are privileged documents.
6. There is no privilege in witnesses. However, if you are aware that the other side has
interviewed a witness, you should advise the other party that you intend to
interview the witness too, and invite the legal practitioner to be present at the
interview.
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7. Explain to your witness exactly what is involved in a trial. Most people are
unfamiliar with court procedures and witnesses will be less frightened if they have
some idea of what to expect. Advise him how to dress, how to behave and how to
address the judge. Tell him to watch the judge’s pen to avoid speaking too quickly.
8. Do not tell a witness what to say or coach him and remember that once he is giving
evidence, you may not discuss the case with him. However, you may warn him that
a question may be repeated a number of times in cross-examination and that he
should answer it each time and remain patient. Tell him also that he may be called a
liar and that he must maintain his calm. Once under cross-examination he is largely
on his own and it is only in situations where he is called upon to give an opinion or
make a conjecture that an objection can be made.

THE TRIAL
It is not possible to learn how to conduct a trial by reading a book. It is necessary to
watch other trials and to conduct trials oneself. The following is simply a guide to
some aspects of trial work.

Advocacy
The manner of presentation of litigation and the power of persuasion affects the
outcome of trials in a surprisingly low percentage of cases. Far more important is the
input of the clients. However, there are a number of factors which are extremely
important to good advocacy.
Careful preparation is essential. The advocate must know fully all the facts and the
relevant papers. He must ensure that he obtains instructions on all points which may
be unclear. He must have a thorough knowledge of the relevant law.

Rules of evidence
It is extremely unwise to go into court without a comprehensive knowledge of the
rules of evidence and the Civil Evidence Act [Chapter 8:01]. There is a useful
commentary on the Act by AR McMillan in Legal Forum Vol 4 No 4 at page 37.

The opening address

The opening address is very important as it may lay the basis for the judge’s view of
the matter and gives to the party who commences a psychological advantage. It is
important, therefore, to ensure that the judge understands your case. Unfortunately,
judges sometimes cut addresses short and in this situation it is important simply to
emphasise the most vital aspects of the case.
The opening address should commence with the broadest possible statement of the
case. For example, in a claim for accident damages the address would commence:

“This is a claim by the plaintiff for damages for an injury he suffered in a

road traffic accident which happened on ...”

This should be followed by a discussion of the issues and a brief discussion of the
evidence. There is no need to give any detail. For example, it would be preferable to
state that an eye-witness will be called who will describe the accident rather than
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detail the evidence the witness will give. The reason is to avoid giving too much
information to the other side at an early stage.
Avoid comment and argument in the opening address. The purpose is to lay a
framework for the case with an orderly analysis of the issues.
The opening address for the other party is unlikely to be as lengthy because the issues
will have been discussed. It is more likely to be confined to a discussion of the way in
which the opening party’s case will be met.

Exclusion of witnesses
It is usually desirable that opposing witnesses do not hear the evidence of your
witnesses and an application to exclude them should be made in appropriate
circumstances.

Keeping of notes
Note taking is vital as it is unwise to rely on the transcript of evidence. In extremely
important matters, it may be necessary to make a verbatim note of a witness’s
statement. It is usually not possible to make notes during cross-examination so
detailed notes should be made as soon as possible afterwards. This should include
your observations of witnesses.
It will be necessary for you to develop a system of note keeping so that you can
remember what has occurred in the matter. Examples of aids to note keeping are
marginal notes, keeping notes in two columns or using different coloured inks to draw
your attention to important points.

Objections
The taking of objections seems to be an important part of the American legal system
according to “LA Law”. It is otherwise here. Objections may be taken in such
circumstances as when a legal practitioner intentionally leads a witness or calls upon a
witness to speculate but judges are frequently irritated by objections and it is a course
of action which should not be taken often.

Order of presenting the case

It is necessary to consider the tactics in presenting a case. It is probably wisest in most
circumstances to present the most important evidence first in order to make an impact.
Where there are a number of issues, it is advisable to present each issue as a coherent
whole so that you do not overlook any vital aspects.

Evidence-in-chief
The object of leading evidence-in-chief is to prove the various aspects of your case.
The problem lies in obtaining such evidence without leading the witness. At the early
stages of the giving of evidence, however, leading questions may be allowed until the
witness reaches the meat of the matter.
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Obviously, you must always be courteous and respectful to your witness. It is

important to appear confident as this reassures the witness. If a witness appears
nervous try and settle him down with simple preliminary questions.
You must be clearly understood and your questions should be unambiguous. Ask only
one question at a time. Do not embarrass your witness by asking unduly complicated
questions. Generally it is better to evince the evidence by questioning though
sometimes it is desirable to encourage your witness to tell a story. However, if he goes
off track, it will be necessary to check him and bring him back with direct questions.
It is important to get everything on record and to this end it may be necessary to ask
direct questions of the witness. If he loses his train of thought remind him of what he
was saying.
If you intend to refer to documents, it is wise to have a bundle ready in the necessary
order and to number them so that the witness can find the relevant document easily.
Identical bundles should also be prepared for the judge and the opposing legal
practitioner.
Try to discourage your witness from volunteering additional information. This simply
gives rise to grounds for cross-examination.
Corroboration is often useful but care should be taken to avoid calling too many
witnesses. They may contradict each other which will destroy any advantage already
gained.

Cross-examination
The objects of cross-examination are to obtain evidence favourable to your client and
to weaken the force of contrary evidence. In certain circumstances it may be necessary
to do this by attacking the credibility of a witness. In other words you should get what
you can and destroy everything else. Failure to cross-examine on any point may be
taken to mean that the evidence is not disputed.

Methods of cross-examination
Cross-examination is often more difficult than leading evidence-in-chief because of
unexpected factors. Accordingly, it is essential to prepare meticulously for cross-
examination beforehand. However, it is also necessary to have a method of taking
notes during the examination-in-chief so that you can deal with the unexpected. A
good advocate will ensure that his notes do not require him to page endlessly through
his papers as this may destroy the flow of his thoughts.
It is essential that the client’s case is put to the witness and nothing of importance is
overlooked. The following techniques suggested by Morris in his book Technique in
Litigation may be helpful.
1. Compare the evidence with established facts.
2. Test the evidence for incongruities of fact and conduct.
3. Test the evidence against common sense and reason,
4. Test the evidence in the light of the state of mind of the witness at the time. Does it
make sense?
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There are a number of important rules for inexperienced legal practitioners.

1. Do not ask a question which might evince an unfavourable answer.
2. Never try to improve on a favourable answer. This frequently results in the
destruction of what has been achieved. It is wise not to show how pleased you may
be with the answer.
3. Cross-examine only when you are likely to gain by it. There is little point in cross-
examining a witness who has not harmed you.
4. Ask questions. Do not comment, do not argue and do not make speeches. These
may not be taken to be questions requiring answers and will not achieve anything.
5. Generally, cross-examine chronologically. This is more logical and easier to
understand than other approaches.
6. Test the witness on collateral matters. This will show whether or not his memory is
reliable. Consider why a witness should have cause to remember an incident. If a
witness remains unshaken, it is often wise to obtain collateral detail. This may be
used to test other witnesses on details and may reveal useful inconsistencies.
7. If a witness fails to answer a question you should ensure that this fact is recorded.
Silences may be very useful to your case and should not go unnoted.
8. Always treat the witness with courtesy and respect. This may be a great deal more
successful than antagonising the witness. It is acceptable to be firm and challenging
but aggressive and unpleasant behaviour is only likely to alienate the judge.
9. Where appropriate, try and gain the witness’s cooperation. You may be able to
persuade him to admit that he has made a mistake.
10.Leading questions may be put in cross-examination.
11.Remain in control of the witness. It is only in this way that you may be able to
damage the testimony given. Do not allow the witness to pose the questions. It is
important to look at the witness to maintain a psychological ascendancy. It also
helps in ascertaining the witness’ demeanour. He may be uncomfortable with an
answer but his discomfort is only shown by subtle indications. If you are looking at
your notes, you may not see the signs.
12.Do not “flog a dead horse”. If nothing is being gained by the approach taken
abandon it.

Credibility
In attacking the credibility of a witness, it will be necessary to consider whether he
may be biased or whether he has personal motives which might affect his evidence. It
may also be necessary to consider his history.
More importantly, one should consider the contradictions in the testimony. The
witness should not be asked to reconcile the contradictions as he may well have a
good explanation. It is more successful to refer to the contradiction in the argument.
Contradictions may be found in the testimony or in letters and other documents.
Where a witness tells a half-truth it is wise to leave it and go back to it later when the
witness has forgotten what he said. Inconsistencies are likely to occur and may be
useful in discrediting the testimony.
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Expert witnesses
It is important when cross-examining expert witnesses to have learned as much about
the problem as possible so that you will be able to evaluate the expert testimony.
Generally, the cross-examination will be conducted as an analysis of the evidence. It
will be necessary to consider the following points when cross-examining the expert
witness.
1. What was the witness asked to consider?
2. On what facts is his opinion based?
3. What other possible opinion could be drawn from those facts?
If the evidence does not stand up to the analysis, you will have succeeded in your
cross-examination.

Re-examination
The purpose of re-examination is to explain anything which may have been raised in
cross-examination and which might need clarification. It should be confined to matters
of substance. It is a delicate process to repair damaged testimony and great care is
required. It is important to establish facts rather than obtain opinions and rhetoric
should be avoided.

The argument
Each legal practitioner must be ready with his argument as the case closes. The object
of the argument is to summarise the relevant evidence and to show why the evidence
of witnesses in your favour should be preferred over the evidence of contrary
witnesses. It is also necessary to draw the judge’s attention to the relevant law and
factors which may be apposite to the exercise of his discretion such as public policy.
In the argument, it is necessary to pin-point the essential issues and careful and logical
preparation is of utmost importance. Thought about the argument should not be left to
the last minute but should be considered throughout the hearing and suitable notes
made. The argument should be a concise and comprehensive statement of the essential
facts and applicable principles of law. Be as brief as possible and avoid repetition.
However, the argument should be expressed deliberately to give the judge sufficient
time to consider the points and to make adequate notes.
When discussing the evidence, it is important not to overlook anything but also to
avoid repeating the evidence. You will need to be able to state why a witness’
evidence should be discounted and, in addition to dealing with factual matters, you
may need to discuss the demeanour of the witness. All favourable aspects should be
highlighted but unfavourable aspects should not be glossed over. They should be
commented on and explained if possible.
It is often useful to illustrate your argument by using facts other than the ones in the
case but obviously such illustrations must be relevant.
It may be necessary to make concessions to ensure that the real issues are not clouded,
but as always, with admissions this should be done carefully.
At the end of the argument you should state the relief which is being sought.
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Written argument may sometimes be useful but it must be prepared as soon after the
conclusion of the case as possible so as to reduce the possibility that important points
are overlooked.

Dealing with difficult judges

Sometimes judges can appear to harass a legal practitioner appearing for a party. Such
judges appear to have formed strong views and do not seem to listen to the answers to
questions they pose to a legal practitioner. In these circumstances it is essential to
exercise rigid self control. Try and remember that you are the legal practitioner for
your client and that the interrogation is directed to you in that capacity and not to you
personally. Try and deal with such questions as an “exercise in forensics, the
application of the science of logic to hypothetical facts.” (Morris, page 145)

Miscellaneous points to remember

1. Don’t talk about the case, particularly to the other side. You may reveal weaknesses
which it will happily use to its advantage.
2. Be punctual.
3. Be courteous to everybody.
4. Avoid humour, particularly when you are inexperienced. Litigation is serious and
somebody is likely to get hurt.
5. Avoid verbosity. It unduly prolongs cases and may have the result of alienating the
judge.
6. Speak clearly and simply and avoid emotional addresses. Unlike “LA Law” there is
no jury to impress.
7. When citing an authority, ensure that the judge is able to take a note of the case if
he wishes.
8. Fight for your case to the last. Lose cases, don’t abandon them.
9. Remember that anything can happen in a case. Morris tells a story about a leading
Johannesburg counsel who was walking with the local junior counsel in Durban
after the day’s proceedings. The senior counsel said that the casino they were
passing looked impressive in the sunset. The junior said that there was no casino in
Durban and that the building was the Supreme Court. The senior counsel replied “I
know”. This may be considered unduly cynical but does illustrate the problem with
trial work.

Post trial
As soon as possible after the trial is concluded report back to the client and send him
an account. This is generally a good psychological time to send him the bill which is
likely to be substantial.
Write and thank all witnesses and pay their bills.
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Monitor the handing down of judgment. When judgment is received, note it and report
back to the client with your assessment of the judgment. Consider the possibility of an
appeal if the outcome is not good. Advise the client on the possibility of an appeal by
the other side if he has won.
If there is no appeal and you have been successful, it will be necessary to deal with the
taxation of costs and execution.

SOURCES

Herbstein & van Winsen, The Civil Practice of the Superior Courts in South Africa, 3rd
Edition, Juta & Co Ltd
McMillan AR, “Commentary on the new Civil Evidence Act” Legal Forum Vol 4 No 4 p 37
Morris E, Technique in Litigation, 2nd Edition, Juta & Co Ltd
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